Seema Malhotra says religious conservatism’s fightback against gay rights shows the importance of defending existing rights as well as fighting for new ones
ON THE day the world watched America elect its first black President, a major injustice was unfolding in California. More than five million Californians were voting on “Proposition 8” – a ballot initiative (rather like a referendum) to eliminate the right of same-sex couples to marry. While the final results are expected on December 9, the “No” campaign has already conceded defeat. Californians have voted by approximately 52 per cent to 48 per cent to abolish the right of same sex couples to marry.
It was a shock result, in an election that more widely symbolised progressive change. Ironically, it was partly as a result of increased turnout, particularly among African Americans, that Proposition 8 was carried. According to exit polls, African Americans voted by a margin of two to one in favour of the same sex marriage ban. Some commentators argue that this was due, in part, to deliberate misleading by the “Yes” campaign of Barack Obama’s position on the issue.
The history of the debate on same-sex marriage in California is surprisingly controversial for a state known for its liberal social attitudes. Opinion is very divided between different counties and between religious and non-religious groups.
Until 1974, same sex “intimacy” was a crime in California. In 1984, following cases about the rights of gay people whose partners had died, the City of Berkeley passed a domestic partner policy for city and school district employees. This followed a year of work by the Domestic Partner Task Force. Working with this organisation was Tom Brougham, a Berkeley city employee who many believe defined the term “domestic partner” and the concept of domestic partnership which included all aspects of marriage except sexual orientation.
It is evident from the development of subsequent district, city and state law that other domestic partner policies are based on Berkeley School District’s policy. In 1985, West Hollywood became the first United States city to enact a domestic partnership registry open to citizens. San Francisco passed domestic-partner protections in 1990, with the state of California following in 2005.
The journey has been a rollercoaster ride. The debate has suffered from a lack of clarity about who should make the decision – the people in a ballot, the state legislature or the California Supreme Court. The origins of Proposition 8 go back to Proposition 22 in 2000. The wording of the latter, similar to Proposition 8 today, was: “Only marriage between a man and a woman is valid or recognised in California.” Proposition 22 was passed by 61.4 per cent to 38.6 per cent. Since then, while public support has grown consistently for domestic partnerships, it is also essentially now neck and neck for same-sex marriage.
In May 2008, however, the California Supreme Court ruled that same-sex couples had the right to marry, overturning state laws that limited marriage to a union between a man and a woman. It was a close decision – four to three – and drew on a ruling from 1948 that overturned a ban on the right of blacks and whites to marry. The ruling, in the words of law professor Kenneth Starr, spoke of the overarching values of equality and human freedom and the need to protect minorities, and the importance of giving same-sex unions equal dignity and respect.
Following the ruling, religious and conservative groups pledged to push an initiative proposed for the November ballot that would amend the California constitution to ban same-sex marriages and overturn the Supreme Court decision. This they duly did – hence the arrival of Proposition 8.
The Supreme Court ruling was supported by Governor Arnold Schwarzenegger. His support for same sex marriage has remained following the November vote.
But the vote against same-sex marriage in November was won, despite 10 state newspapers being in favour of keeping it. What is absolutely abhorrent is the underhand and bullying tactics of the “Yes” campaign’s lobby. One businessman who supported a “No to Proposition 8” fundraiser received a letter from ProtectMarriage.com. This demanded a donation of at least $10,000 and requested that the recipient “withdraw its support of Equality California”, the organisation that is part of the campaign against Proposition 8. There followed a threat to publish the names of companies and organisations that supported Equality California but “chose not to donate in like manner to ProtectMarriage.com.”
The letter went on: “Were you to elect not to donate comparably, it would be a clear indication that you are in opposition to traditional marriage… The names of any companies and organisations that choose not to donate in like manner to ProtectMarriage.com but have given to Equality California will be published. It is only fair for Proposition 8 supporters to know which companies and organisations oppose traditional marriage.”
It seems that more than 30 businesses were targeted in this way. A letter to the Abbott Realty Group in San Diego stated: “We respectfully request that Abbott and Associates withdraw its support of Equality California… Make a donation of a like amount to ProtectMarriage.com which will help us correct this error and restore traditional marriage.”
Since the vote, four lawsuits have been filed with the California Supreme Court challenging the validity of Proposition 8. There is also talk from the “No” campaign about bringing the ballot back again. The “Yes” vote for Proposition 8 has effectively restored the same-sex marriage ban that was overturned by the Supreme Court’s own ruling in May.
The Supreme Court’s decision on the lawsuits, due very soon, will have major implications for this issue and similar minority rights issues. Some are calling for the court to defer to other branches of government. Others are citing the court’s obligation to protect minority rights. Overturning Proposition 8 may call into question the court’s earlier decision and authority to revise the state constitution in May.
Currently, more than 18,000 same-sex couples who have married in California remain in limbo. It is unclear what the status of their marriage will be. Some counties in California immediately revoked licences on November 5; others are waiting until the final ballot is declared and the issue resolved.
The situation is reminiscent of a 2004 ruling when the California Supreme Court declared void the marriages of about 4,000 same-sex couples in San Francisco, after ruling that the city’s mayor exceeded his authority by granting them marriage licences, since legislation and the earlier state voter-approved measure defined marriage as a union between a man and a woman.
What is clear is that this is the thin end of the wedge. The original Proposition 8 put forward by religious groups would also have threatened domestic partnerships. No doubt, if the “Yes” vote is upheld, a campaign to further erode gay and other minority rights will begin.
As demonstrations continue across the United States in support of same-sex marriage, it is vital to maintain solidarity with those fighting for gay rights and help to keep up public support as the arguments work their way through the maze of American constitutional law.
What is so shocking is how calculating the conservative lobby can be in taking away rights that have been granted to minority groups. It is a stark reminder that freedoms for minorities must not only be won, they must also never be taken for granted. They will always need to be protected and defended against the forces of conservatism.
Seema Malhotra is director of the Fabian Women’s Network
